Evidence on Motions and Applications: Oral Testimony is not a Right
In a recent decision out of Alberta, a court denied one of the litigants leave to present viva voce or oral testimony in the context of an application to have that litigant declared incapable.
In Adria v. M. (E.) [2007] A.J. No. 291 (Q.B.) (Q.L), a father's children brought an application to have their father declared a dependent adult. The father had previously been admitted to hospital and found incapable of making decisions regarding his personal matters. The diagnosis had included dementia and significant impairment of judgment. On the basis of medical opinions, the children believed that their father should permanently live in a locked supported-living facility. Hence, the need for their application.
The father, in turn, brought an application for a declaration that he was being wrongly and unconstitutionally detained. As part of his application, the father sought leave to give oral testimony at the hearing. The court ultimately denied leave.
As part of its reasons, the court held that although it had discretion to allow an individual to give viva voce evidence, that discretion should be exercised sparingly. The court found that there were no special circumstances present in favour of departing from the usual rule that evidence should be provided by way of affidavit. Indeed, the father had filed three affidavits, in which his views, evidence and wishes were expressed. The court found no obvious reason to supplement the father's affidavit evidence with oral testimony.
The issue before the court was not one of credibility, as no one doubted the father's desire to be free and live in his own home. The court held that where groundwork has been laid to question capacity, and in this case the various medical opinions provided by the children had laid that groundwork, the issue of capacity became one of expert opinion, and not credibility.
The Adria case is a good illustration of the limitations placed on litigants in presenting evidence on motions and applications. Unlike trials, presenting oral testimony is not a right, but ultimately an exercise of judicial discretion.
Have a great day!
Bianca La Neve
